Torts II
VICARIOUS LIABILITY
A. Respondeat Superior
Negligence of one party is imputed to another based solely on the relationship between the parties, not because the other was negligent
Most common form
Employer is liable for negligence of employee if negligence occurred within the scope of employment
mere fact that tort occurred on the job doesn’t mean employer is vicariously liable
Must ask:
A) was worker acting within scope of employment; if no, then not vicariously liable
B) was worker an employee or independent contractor; if independent contractor, then not vicariously liable
Policy:
– employer more able to pay damages- insured or can spread cost by raising prices of services or goods
– encourages employers to be careful with who they hire and how they conduct their business
– employer is getting a benefit from employee’s activity
– accidents are inevitable- part of business enterprise theory
Deliberate decision to allocate risks which is inconsistent with liability because it is not fault-based
Factors of scope of employment:
working in furtherance of employment duties
benefit to employer
control by employer
what is commonly done
extent of departure- whether it is similar to the act authorized
Frolic- employer cannot be responsible for trips with personal benefits to employee
Detour- minor deviation- within scope of employment
Ex) sending employee to hardware store and he goes to the drugstore for a personal item- depends on how out of the way the trip was, did he have to drive by there anyway, was it in walking distance
malicious conduct is a reason to look more closely because often such conduct occurs over personal matters
same rule for negligent and intentional torts
ex) truck driver- angry- cuts driver off and punches him
ex) patient in hospital- just out of surgery- sexually assaulted by resident-sued doctors and nurses, but for direct liability, not vicarious liability because it was not within the scope of employment
ex) delivery man raped customer- employer was held liable because it was over a billing dispute
B. Independent Contractors
· employer is not liable for independent contractors because control is limited
· independent contractor performs tasks independent of employer’s workforce
· looser relationship
· typically paid to accomplish a specific task- own tools or equipment
· Exceptions:
– hires independent contractor to perform inherently dangerous activities
– apparent authority- when presented as an employee; ex) doctor in emergency room
– nondelegable duties- some risks that we don’t permit employer to delegate to others:
o ex) Maloney case- mechanic was negligent for not fixing the brakes and defendant caused another accident due to brake failure- law makes driver liable to plaintiff- not a delegable duty
o patterns- maintenance of land or structures that could cause danger to others:
1. carrier transporting passengers
2. premises safe for visitors at a place of business
– independent contractor doesn’t relieve employer of liability if duty is non-delegable
– labor law section 2416: owner is liable for worker for injuries caused during the construction on owner’s property due to the negligence of contractor or subcontractor even though the owner doesn’t control or supervise the construction- contractor is liable for subcontractor
C. Joint Enterprise
one who is involved in a joint enterprise is vicariously liable for the tort of the other party
Elements:
an agreement among members of the group
a common purpose
a community of pecuniary interest
an equal right of control
NY test is broader than the one in the Popejoy case in Wyoming
– not limited to business purpose
– requirements: 1) common objective and 2) equal right to share control
– one person may not have been acting out
– distribute negligence from 1 to the other because of their common objective
D. Bailments
imposed by statute: owner of car is vicariously liable for one who uses that car so long as that person had consent of the owner- consent is most often presumed and difficult to refute
NY- contrary to public policy- car rental places cannot limit who drives the cars by contract/agreement; similar statutes with boats, snow mobiles and ATVs
STATUTE OF LIMIATIONS
– Purpose: prevent stale claims, give peace of mind, eliminate endless uncertainty
– Tolled (stopped) when: plaintiff is an infant, plaintiff suffers from insanity, defendant fraudulently conceals injury; (depends on jurisdiction)
Intentional torts: 1 year
Negligence: 3 years and there must be some damage for the statute to run
Professional malpractice: 3 years; statutory whether it is a contract or tort cause of action
Attorney- runs from time of the malpractice, not from the time of discovery of the malpractice
Personal injury statute of limitations = 3 years
90 days = notice of claim; in addition to statute of limitations- required and applied when injured by municipality
Traditional Rule:
– begins to run at the time of injury
– problem: didn’t know of injury until statute of limitations has run out
Discovery Rule:
– time patient discovers or in exercise of due care should have discovered injury
– statute of limitations doesn’t run until injury is or should have been discovered in medical malpractice cases in this jurisdiction (Teeters v. Curry)
– jurisdictional alternatives:
1) when the injury was discovered
2) when the symptoms became apparent
3) when the connection between the symptoms and the injured person’s exposure to the negligence is recognized
Second Disease- NY & Majority:
– claim is not time barred if it is a second disease caused by defendant’s negligence
– NY- no discovery rule for malpractice cases- only toxic substance exposure and foreign objects, ex) sponge left in stomach and toxic torts- exposed to toxic substances over a period time (A Civil Action)- depends on jurisdiction: symptoms become apparent and associated with non-biological substance
– p. 618 note 11: defendant’s negligence causes plaintiff to suffer injury, but plaintiff doesn’t sue until condition worsens- statute of limitations runs from first injury; worsening of condition is time barred, but a new disease is not…for example, Asbestos is not time barred because of its latency- one plaintiff developed lung cancer later on after being exposed to Asbestos
– A
eople cross your land and you know because they leave a foot path)- warn against danger if you know trespassers are common
3) attractive nuisance doctrine- person deviates from highway onto your land because it looks as though it is still public land
Children Trespassers à only goes into affect in jurisdictions that use the categorical approach
– attractive nuisance doctrine: entices child- softened rule and now, doesn’t have to be the dangerous thing that actually entices the child to go onto the land
– landowner owes a duty to children trespassers when:
1) trespass is foreseeable
2) landowner knows or has reason to know of danger
3) child cannot protect themselves from the danger
Categorical Approach (NY no longer used this approach):
1) what is status?
Trespasser- someone on land without privilege to be there
Invitee- goes on land in furtherance of land owner’s business
Licensee- invited guest
2) what is the duty of care owed?
Trespasser- limited duty- below due care standard
Licensee- limited duty- below due care standard
Invitee- reasonable due care standard
3) Was duty breached?
B. Licensee
1. social guest- one who enters other land withexpress or implied permission for his own purpose and not for owner’s benefit
2. duty of care = duty to warn or make safe any hidden dangers not obvious to licensee but known to owner
3. duty to warn when a) defendant knows of dangerous condition or should know OR b) owner has reason to know licensee will encounter danger
4. licensee takes premises as he finds them
5. duty only extends to known dangerous conditions – no duty to inspect in order to discover dangerous conditions
enters premises by permission but is for the licensee’s own purpose- companionship, diversion, or entertainment- takes premises as he finds them
duty is to warn against dangers unknown to licensee but known to homeowner
owner must refrain from injuring licensee wantonly or willfully
Barmore v. Elmore- homeowner didn’t protect licensee from son who had mental disability, but not liable because he didn’t have reason to know that his son would act out that way
C. Invitee
1. business visitor who is expressly or impliedly invited onto premises of another in connection with business dealings with land owner
2. any person on land open to public or to a category of the public which you are a member ex) hospital or park
Ordinary Due Care Standard
Originally only business visitors
Now- most jurisdictions that use the classification system based on public invitation test- any person on land open to public; not dependant on business purpose
